Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-01
COURT OF APPEALS.
Synepsas of Decisions Rendered at the
Present Sitting Of the Ap-
pellate Ceart.
Opinions Handed Down in Number of
Long CoHtes"d Cases-Some
New Rulings.
Correspondence of the Gazette.

Rdefendant's horse became unmanageable lie,
| and not subject to his control, ran away
with him, ran against and upset buggy
! in which were some ladies' and child,
causing injuries for which this conviction
is iDnicte I. Held: The facts clearly show
an accident which could not have been
prevented by appellant, and without such
degree OF csrelesness or negligence on
| the part OF appellant to render the act
criminal. There being no intent TO injure
there can be no assault in law. Reversed
ana remsnded Wilson, J
Tim Alexander vs.. the State; appeal
from Brszoria. Conviction for theft of
cattle. The Indictment alleges that the
animal stolen was the property and
in possession of Z. N. Wilson.
The evidence showed That ST the time
1t was missed from the range it was under
| the care, management and control OF one
Fernandez, who had been hired by the
| owner to mark, brand and look after his
stock generally. He did not have the
power to dispose of the m, but they were
under hia exclusive control and manage
ment. Held: THIS is material variance
between the allegation and proof for
| which the conviction must be set aside.
Reversed and remanded. Wilson, J.
Calvin Mccullough VS.. the State; sp-
peal from Tarrsnt. To constitute an
assault with attempt to murder two
things must concur, viz: l. An assault;
9, and specific intent to kill The evil
deDce in this case shows that the asssuir
was made with intent tC alarm" and not
with intent to kill. The evidence SHOWS
that at the time the assault was made
the person at whom the assault was d.
rected was in such a position that IL was
impossible for defendant to INFECT
battery with the gun. There was there
fore no assault committed except that
character Of assault named in subdivision
of article 489. Penal Code, which is an
assault with intent to slarm. To coGsti-
tute sn assault with intent TO murder, the
assault must be coupled with an ability
to commit battery upon the person as
saulted. For failure TO so instruct the
Jury, and because the evidence does not
support the conviction, the Judgment
must be Set aside. Reversed and re-
meDded. Wilson, J.
Willie Nichols VS.. the State; sppezl
from TarraDt Conviction for murder.
Sentence, life. Where the injury is in
Hicted with stone, 1t must be shown
that t. stone was deadly weapon. TIE
instrument or means by which homicide
is committed are to be taken into consid-
Grafton. 10 judging of the intent of the
party offending, If the instrument be one
not likely to produce death, it is not 10
be prt sumed that death WIS designed,
unless from the manner in which
it was used such intention
evidently appears. The intent was the
essential point, and the jury should
have been fully Instructed in relation
thereto. For failure to so charge the
jury by the court below, the conviction
will De set aside. Reversed and remand
edszgEhite, P J.
F BUD Collins vs.. the State; appeal from
Fannin. Conviction for theft of horses.
Where the application for continuance
was made in tue court below, on the
ground Of the absence OF four witnesses
by whom it was proposed to prove q
material point, and it appears from the
record that TWO OF the Witnesses appear
and testify after the motion is overruled,
and do not testify to facts alleged IN
motion for continuance. Held: Tue
court did not err in overriding the
motion, me proposed testimony being
apparently untrue.
is taken at an examining trial and the
witness, by an attack of measles,
loses one eye, the sight of
the other impsired, with chronic
pains in the head aud pslpitatlon Of the
heart, and who resided forty miles dis
'tsBt In another county. Hel1: That the
Court did not err in permitting the IN
{roduetlon Ct said written testimony,
WsEnsss being ell ctcd with bodily infrmi |
ty as contemplated by our statute. The |
court permitted the state over OBJECTIONS
Of appellant TO prove the confessions of |
Lindley, who is alleged to have been con- |
nected with the theft. Held: The court |
did not err, having subse quently charged |
the Jury that this confession could not
be taken against appellant, he not 7eing |
present No reversible error. Affirmed |
White P. j.
Jim Lindley VS.. the State; appeal from |
FaDnin. This is companion case to |
that of Collins, above, they having been |
Jointly indicted and convicted. The !
points dedaced above are also decided in |
this case, with the exception Of affrmsi
aDce. The evidence shows that ap- |
pellant had nothing to do with |
the original taking. II he did not par
AciDste in the orlginsl taking, aud took |
no part in its consummstion, lhen he was |
not guilty of theft, however criminal his |
subsequent conduct might have been.
The evidence does not show such so |
''sctiDg together" between himse and |
Collins to make him a principal. A re-
quested charge covering this phase of |
the case was requested and refused. Un-
der the evidence this was error. Re- |
versed and remsnded. White, P.
,sW3lffam Dryer vs.. the State; appeal
from Fsnniu. Conviction for swindling. |
The Indictment alleges that appellant !
Dryer, Edward EZlinton and L. Las
kin perfected the s~indle; that the money |
charged to have been obtained "by means
of false pretenses ard divers fraudulent |
Misrepresentation" was the property of |
L. A. Sheldon aDdJ C. Brown The proof !
sho wed that the money was received from |
the agent of Brown and Sheldon, who |
had authority to pay the money.
The indictment alleges that appellant and /
his co -defendants obtained the money by |
presenting q discharge certificate to the
sgent of said Brown and Sheldon,s shaking
certain false statements, and that "the
whole of SAID transaction on the part Of |
~ IL 49, n II = 4